Lawmakers intensified their push for OSHA to take immediate regulatory steps to address workplace safety in the fuel gas industry as a stopgap while the agency potentially tackles the longer process of a final standard, following the agency's decision to issue one of its largest-ever fines and send out letters to the industry warning of enforcement activity instead of pursuing a regulation.
OSHA chief David Michaels indicated Aug. 5 the agency was not planning to pursue an emergency temporary standard for fuel gas safety but agreed with a Chemical Safety Board (CSB) report calling for renewed safety measures in the industry. The CSB report based its conclusions on hazards identified in deadly gas explosions at the Kleen Energy plant in Connecticut and ConAgra facility in North Carolina.
The agency cited three construction companies involved Kleen Energy as well as 14 site contractors and fined them a total of $16.6 million -- its third largest fine behind two it issued against BP -- and said a warning letter will go to natural gas power plant operators regarding the practice of cleaning fuel gas piping using natural gas, and the need to ensure safety procedures and practices.
Michaels told reporters in a conference call that immediate regulatory action would require issuing an emergency temporary standard. He called that problematic, however. "We have to show there is no alternative to whatever we proposed in the emergency temporary standard," Michaels said. Referring to the fines and enforcement warning, he added, "We feel immediate action is needed. We think this is where the hazards are."
But OSHA's decision did not satisfy lawmakers and safety advocates who hoped for regulatory action, despite the heavy fine and stated intent to step up enforcement. It also led the CSB chairman to issue a statement calling on OSHA to adopt urgent recommendations outlined in the report.
Rep. Rosa DeLauro (D-CT), who spearheaded language in the House labor appropriations report directing OSHA to develop an interim final standard that at minimum adopts the CSB urgent recommendations, lauded the Kleen Energy fines. But she called on OSHA to take regulatory steps in a statement with three Connecticut Democrats -- Reps. Joe Courtney and John Larson and Sen. Christopher Dodd.
Joining the full-court press on OSHA were House labor committee Chair George Miller (D-CA) and workforce protections subcommittee Chair Lynn Woolsey (D-CA), who issued a joint statement calling on OSHA to adopt the CSB recommendations. "We recommend that OSHA make this prohibition mandatory," they said.
The appropriations language sought by DeLauro calls for OSHA to update Congress within 180 days of the bill's enactment, and every 180 days thereafter, on the timeline for issuing an interim final standard. Michaels said the agency takes no position on congressional decisions.
OSHA's decision not to attempt an interim ban on the practice also met with dismay from union officials who argued the agency can win such a case. Mike Wright, director of health, safety and environment for United Steelworkers, called for congressional action if OSHA won't seek the prohibition.
The union is disappointed the issue has to go to Congress, Wright told Inside OSHA. "I think the Department of Labor is being very timid. If there's ever an issue that cries out for an emergency temporary standard, this is it." Wright contended legal considerations at Labor may have trumped OSHA's wishes to take regulatory action. "I suspect the decision was made by the Solicitor's Office, not by OSHA itself."
Though Michaels said the agency had lost five of the nine cases that had resulted from emergency temporary standards, Wright noted the agency won four of them. "That's not so bad a record in this kind of literally life and death issue." He suggested the agency has been stymied before in similar efforts, saying, "I only know that OSHA has been plagued through several administrations by a Solicitor's Office that is just risk-averse."
CSB called for urgent steps in four areas of fuel gas safety for both construction and general industry: prohibiting the release of flammable gas to the atmosphere to clean fuel gas piping, flammable gas venting or purging indoors, and work activity in areas where the concentration of flammable gas exceeds a fixed low percentage of the lower explosive limit determined by appropriate combustible gas monitoring; and requiring companies to develop gas safety procedures.
Rafael Moure-Eraso, CSB chairman, released a statement shortly after OSHA released its decision, noting the Board's recommendation for OSHA to promulgate rules to prohibit the release of flammable gas to the atmosphere to clean fuel gas piping. "Dr. Michaels stated that OSHA likely does not have the authority to prohibit the use of flammable gases during pipe cleaning operations, and that promulgating such a regulation would take years," he said. "The CSB believes that OSHA does have adequate authority to take this action and to start the standard setting process at any time."
Moure-Eraso said CSB found the practice of gas blows is inherently unsafe, and that investigating the Kleen Energy accident, found that several safe alternatives to pipe cleaning are available, such as compressed air, nitrogen and pigging. CSB also found companies have already begun to ban gas blows, he noted, saying the practice should be prohibited by regulation.
OSHA is now reviewing CSB's report and recommendations, Michaels said. "We agree with the CSB that this problem must be addressed immediately," he said. "We are considering them. We obviously take the recommendations very seriously." OSHA has 180 days to respond to the report under the statute that created the CSB.
The agency chief sent another strong enforcement signal by saying OSHA will consider referring the Kleen Energy contractors for possible criminal prosecution, but said OSHA has not decided when or if it would take that action. The largest fines were proposed against O&G Industries Inc, the project's general contractor; Keystone Construction and Maintenance Inc., which was in charge of the piping and oversaw the gas blow; and Bluewater Energy Services Inc., the commissioning and startup contractor for the plant.
OSHA did not release the warning letter before press time, saying it was still in draft form. Michaels said it was a question for the agency's attorneys whether the letter can be used to help make a case for future citations of willful violations. A day earlier the agency said it was sending a letter to grain elevator operators warning them of inspection and enforcement activity (see related story). Referring to the natural gas power plants, Michaels said, "There's no question, we want to put these employers on notice that they have the information they need to recognize the hazard and abate it." -- Christopher Cole